A Message for Issue 21.S1
It is my great pleasure to introduce you to our new Special Issue (vol. 21 issue S1) on the two seminal decisions on the Right to be forgotten handed down by the Bundesverfassungsgericht (BVerfG) on November 6, 2019 (Right to be forgotten I and II ). As the BVerfG is yet to provide official translations of the full decisions, we have created convenience translations: Right to be forgotten I / Right to be forgotten II.
The practice of forgetting has made a remarkable legal career. Since its earliest origins, law has been nothing but an infrastructure against forgetting. Antique codifications pinned down oral tradition and custom, preserving it until our day. Subjective rights guarantee erstwhile privileges, earned or not, against the eviscerating powers of forgetting, enabling the durability of capital. Criminal law ensures that trespassing is normally not forgotten. And after periods of transition, memory laws attempt to set the record straight.
Paradoxically, in the age of digitalized knowledge, the memory function of the law has taken a decisive turn with the emergence of the right to be forgotten. Carved into law by the Court of Justice of the EU in Google Spain, it immediately got into conflict with other rights, including the freedom of information. As the conflict concerns a crucial area of contemporary technological and social development, it makes the right to be forgotten a formidable candidate for transnational judicial dialogue.
It might therefore be no coincidence that the First Senate of the BVerfG chose two cases on the right to be forgotten for dropping a bomb in matters of judicial dialogue. The decisions unsettle its prior jurisprudence, under which the BVerfG would bite off its tongue rather than use the EU Charter of Fundamental Rights as a yardstick for reviewing how German authorities applied fully harmonized Union law (Right to be forgotten II). To top this up, the BVerfG further held that even if Union law left the member states some leeway, it would control whether the Basic Law meets the standard of fundamental rights protection presupposed by Union law, and exceptionally apply the Charter if it doesn’t (Right to be forgotten I). These decisions put the Charter at the core of the BVerfG’s mandate. Needless to stress that this upsets the “cooperative relationship” between Karlsruhe and Luxembourg in matters of fundamental rights protection, even though the First Senate hastened to add the new case law would remain without prejudice to its – or rather, to the Second Senate’s – Solange, ultra vires, and identity control jurisprudence.
This sensational judgment has raised many questions since. A group of authors, assembled ad-hoc by Karsten Schneider and yours truly, try to answer some of them in this issue. With this, the present issue continues the tradition which made the GLJ great – in-depth debates of transnationally significant case law. Even though law blogs have long taken over the lead in providing first-hand analysis, we believe that maintaining the high quality of legal scholarship requires slow-science, in-depth analysis as well. In tune with the transnational spirit animating the German Law Journal, we invited authors from other jurisdiction to share their views.
The collection begins with Dana Burchardt ’s thorough and sobering examination. She remains unconvinced of the key argument of the First Senate, namely that there existed a gap in legal protection, leading her to consider the judgment as a potential source of future conflicts between the courts. It would open the gates for the BVerfG to develop its jurisprudence on the Charter in parallel (or in ignorance) of the CJEU.
Karsten Schneider looks into the consequences of the judgment under national law, which remain all but clear. This contribution shows how the tectonic shifts in the fundamental rights architecture set in motion by the two decisions cause a lot of crunches in the woodwork of the constitution.
Matej Avbelj, by contrast, takes a more optimistic view. For him, the remarkable issue is the court’s integration of the standard of review of another legal order in its own legal framework, a true moment of constitutional pluralism.
Ana Bobic ’s argument goes along similar lines, although she senses a risk that the BVerfG will refrain from preliminary references in contravention to the CILFIT criteria as understood by the CJEU. But one should not underestimate the dialogical character of “indirect” referrals and cross-citations.
Jud Matthews analogizes the BVerfG’s step with the breakthrough of the procedural paradigm in US admin law. Like the latter guaranteed citizens some kind of hearing, the BVerfG now ensures citizens will enjoy some kind of fundamental rights protection chosen from among various equivalent alternatives.
Matthias Goldmann argues that one should read this judgment in the context of the burgeoning rule of law crisis of the EU. Both the wider context of the decisions and their content yield reading them as deliberate efforts to strengthen the back of the CJEU, currently the last institution standing between our embattled colleagues and the unfettered spread of autocracy in some member states, especially in Poland.
The collection concludes with a piece on the significance Federico Fabbrini and Edoardo Celeste , which situates the BVerfG decisions in the context of disputes about the extraterritorial reach of data protection rules. It argues that greater convergence in data protection rules would be the preferable alternative.
As always, happy reading!
On behalf of the Editors